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2 4. Whole Foods Market, Inc. is a Texas Corporation whose principal office in this state is 601 North Lamar Blvd, Austin, Texas It may be served with process by serving CT Corporation System, 1021 Main Street, Suite 1150, Houston, Texas Quorn Foods, Inc. is a Delaware corporation whose principal place of business is 1037 East Putnam Avenue, 2nd Floor, Riverside, Connecticut It has registered to business and has done business in Texas, but its registration was forfeited in 2003 for non-payment of franchise tax. It may be served with process by serving CT Corporation System, 350 North St. Paul Street, Dallas, Texas 75201, or CT Corporation System, One Commercial Plaza, Hartford, Connecticut All of Plaintiff s claims against Quorn Foods arise out of the same series of transactions and occurrences as his claims against Whole Foods. Jurisdiction 6. This Court has jurisdiction in this matter, pursuant to the Texas Deceptive Trade Practices Act, TEX.BUS. &COMM. CODE et seq. ( DTPA ). The sum or value of the amount in controversy is in excess of the minimum jurisdictional limits of this Court, but is less than $5,000,000, exclusive of interest and costs. The total benefit and/or value to Plaintiff of the equitable relief sought herein and the class is less than $5,000,000, including attorneys fees incurred through the filing of this lawsuit. The total detriment and/or cost to Defendants of the equitable relief sought herein is minimal and conjectural, because the relief sought is simple warning of the risks of certain food products, and thus Defendant Quorn Foods will not incur any monetary loss in complying with an injunction, except possibly printing and labeling costs estimated at $50,000 or less. Defendant Whole Foods will not incur any monetary loss in complying with an injunction, except possibly printing notices at a cost of under $10 and posting them in the freezer cases in each of its stores in which Quorn products are sold. Original Petition Class Action, page 2

3 Venue 7. VenueisproperinTravisCounty,TexaspursuanttoTEX. CIV. PRAC. & REM. CODE (a)(2) and Acts of Agents 8. Whenever in this Petition it is alleged that either Defendant did any act, it is meant that Defendant performed or participated in the act, or the officers, agents, or employees of Defendant performed or participated in the act, with the actual, vicarious, or imputed authority of Defendant. Conditions Precedent 9. All conditions precedent to the filing of this case have been performed, have occurred, or have been satisfied. Facts 10. Quorn is the trade name for a variety of frozen meatless food products made by Quorn Foods parent company Marlow Foods Ltd., a British entity. Quorn Foods markets and sells Quorn products in this country. 11. Quorn is not a traditional food product. Instead, Quorn is brewed from a proprietary vat-grown soil fungus and then combined with flavorings, binders, and other substances. 12. Some people can consume Quorn products safely, but some people have dangerous reactions to Quorn products and suffer nausea, vomiting, diarrhea, and occasionally hives, difficulty breathing, or anaphylactic reactions. Some people react the first time they eat Quorn, while some react only after building up sensitivity after eating several meals of Quorn. 13. It is difficult to identify the cause of an allergic reaction. Many consumers become sick several times before linking Quorn to the reaction. This is especially so Original Petition Class Action, page 3

4 when a food such as Quorn is marketed as a health food and sold in natural foods stores such as Whole Foods. 14. Medical studies have proven that Quorn s fungal ingredient is an allergen or causes allergenic-like reactions in some people, though the fungal ingredient conceivably also could have a toxic effect in some people. 15. In addition, Quorn is marketed as being similar to truffles or morel mushrooms. In fact, although also a member of the fungus kingdom, Quorn is made not from a normal edible mushroom or fungus, but from a soil mold called Fusarium venenatum (the word derives from the Latin word for venomous). Thus, it is marketed in a deceptive manner in addition to its failure to disclose its allergenicity. 16. The website for Quorn warns people with allergies to eggs and milk. Those are all well-known food allergens. Labels for Quorn contain similar warnings, about these well-known allergens, but are silent about the Quorn-specific risks. 17. Adverse reactions to Quorn are as common as or more common than allergic reactions to eggs, milk, nuts, fish, and other common food allergens. However, Defendant choose not to warn consumers of the unique risks of eating Quorn. 18. Plaintiff was unaware of these risks when he bought Quorn Naked Cutlets at his local Whole Foods store in September Soon after eating just one cutlet, Plaintiff experienced severe gastrointestinal cramping, nausea, vomiting and diarrhea, which continued for approximately five hours. He continued to have stomach pain and general gastrointestinal distress for the following 48 hours. 20. If the label or a prominent sign in the freezer case where Quorn is sold had warned of the risks of developing the kind of problems he experienced, Plaintiff would not have purchased or consumed the product. Original Petition Class Action, page 4

5 21. Plaintiff contacted Whole Foods to advise of his complaint and to request that Whole Foods warn its customers of the risks of Quorn products. Whole Foods sent Plaintiff an on September 30, 2004, which said that We have no plans to post warnings about this product, as we leave it to our customers to make informed decisions about their own dietary needs and/or requirements. 22. Plaintiff contacted Quorn Foods in November, 2004 to advise of his complaint and his intent to bring a lawsuit, if Quorn Foods failed to warn consumers of the risks of Quorn products. 23. In response to Plaintiff, Quorn Foods acknowledged that Quorn causes allergic and adverse reactions but rejected Plaintiff s request that the label for Quorn include a warning of Quorn s potential to cause an adverse response, because all food products have the potential to cause an adverse response in susceptible individuals, and to label all food products as such, rather than informing consumers, no doubt would cause confusion. 24. In the face of refusal by either Defendant to warn consumers of the risk of Quorn, Plaintiff is forced to bring this lawsuit. Class Action Allegations 25. Plaintiff sues on his own behalf and, as class representative, sues on behalf of all persons in the United States to whom either Defendant sold any Quorn product in the period from four years preceding the date this lawsuit is filed to the date of certification. This action does not seek relief for any claims for personal injury that have been or could have been asserted by any member of the class against either Defendant for any reason. 26. Plaintiff brings this lawsuit as a class action because, on information and belief (1) the class is so numerous that joinder of all members is impracticable, (2) there Original Petition Class Action, page 5

6 are questions of law and fact common to the class, (3) Plaintiff s claims are typical of the claims of the class, and (4) Plaintiff can and will fairly and adequately protect the interests of the class. 27. Questions of whether, and to what extent, Defendants engaged in the practices described herein, whether they did so intentionally or knowingly, and whether they thereby violated the law will be common to all members of the class. 28. It is appropriate to maintain this lawsuit as a class action because Defendants acted on grounds generally applicable to the class, thereby making both preliminary and final injunctive and declaratory relief appropriate with respect to Plaintiff and to the class as a whole. 29. Plaintiff s claims are typical of the claims of the class as a whole. He can and will fairly and adequately protect the interests of the class, because he has retained experienced counsel to represent the class, he has no conflict of interest with the class, and he brings this lawsuit specifically for the protection of other consumers who have been and will be damaged by these practices, and not simply to recover his personal damages. First Cause of Action Deceptive Trade Practices 30. Defendants engaged in false, misleading, and deceptive practices in violation of the DTPA, which Plaintiff and other class members relied on to their detriment. 31. Pursuant to DTPA 17.50(b)(2), Plaintiff seeks an order enjoining Defendants acts or failures to act that violate the DTPA. 32. Pursuant to DTPA 17.50(b)(3), Plaintiff seeks orders necessary to restore to him all money acquired from him by Defendants in violation of the DTPA. Plaintiff also seeks orders necessary to restore to class members whose identities are known to or Original Petition Class Action, page 6

7 ascertainable by either Defendant all money acquired from them by Defendants in violation of the DTPA. 33. Pursuant to DTPA 17.50(b)(4), Plaintiff seeks all other relief which the Court deems proper. 34. Plaintiff does not seek economic damages for himself or other class members. Second Cause of Action Money Had and Received 35. Whole Foods received money belonging to Plaintiff. Whole Foods benefited from the receipt of the money. Whole Foods is thereby obligated to make restitution to Plaintiff, for which Plaintiff hereby prays. 36. Whole Foods received money belonging to other class members and benefited from receipt of the money, and is therefore obligated to make restitution to other class members whose identities are known to or ascertainable by either Defendant, for which Plaintiff hereby prays. Third Cause of Action Breach of Implied Warranties 37. Defendants knew that Plaintiff and other class members were buying Quorn products for a particular purpose a healthful, safe, and nutritious meat substitute and that Plaintiff and other class members relied on Defendants skill and judgment to select goods fit for that purpose. 38. Quorn products are not fit for this particular purpose because of the known risks and because of Defendants failure to package and label these products with an adequate warning about the known risks. Original Petition Class Action, page 7

8 39. For the same reasons and because Quorn products are also unfit for the ordinary purpose of any food (consumption), Quorn products were unmerchantable at the time they left the vat where they were created, and remained unmerchantable at all times after that. This unmerchantability is inherent in the products. 40. Plaintiff notified Defendants of the acts constituting the breach of the implied warranties of fitness for a particular purpose and merchantability, both for himself and for the class. 41. Plaintiff and other class members suffered injury as a result of these breaches of warranty, for which Plaintiff hereby prays, because they paid for and received Quorn products that were not as warranted. These breaches of warranty are also violations of the Deceptive Trade Practices Act, and relief is sought pursuant to that Act, as set forth above. Request for Declaratory Judgment 42. Plaintiff seeks a declaratory judgment from this Court pursuant to TEX. CIV. PRAC. &REM. CODE Chapter 37 declaring that Defendants engaged in the practices described herein and that these practices were breaches of contract and violations of the DTPA. Request for Permanent Injunction 43. Plaintiff seeks a permanent injunction preventing Defendants from engaging in the illegal practices described herein. Attorneys Fees 44. Plaintiff and each class member seek recovery of their reasonable and necessary attorney fees as provided for in DTPA 17.50(d). Prayer THEREFORE, Plaintiff respectfully prays that this Court: Original Petition Class Action, page 8

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